(a) No suit prior to filing claim for refund
No suit or proceeding shall be maintained in any court for the
recovery of any internal revenue tax alleged to have been
erroneously or illegally assessed or collected, or of any penalty
claimed to have been collected without authority, or of any sum
alleged to have been excessive or in any manner wrongfully
collected, until a claim for refund or credit has been duly filed
with the Secretary, according to the provisions of law in that
regard, and the regulations of the Secretary established in
pursuance thereof.
(b) Protest or duress
Such suit or proceeding may be maintained whether or not such
tax, penalty, or sum has been paid under protest or duress.
(c) Suits against collection officer a bar
A suit against any officer or employee of the United States (or
former officer or employee) or his personal representative for the
recovery of any internal revenue tax alleged to have been
erroneously or illegally assessed or collected, or of any penalty
claimed to have been collected without authority, or of any sum
alleged to have been excessive or in any manner wrongfully
collected shall be treated as if the United States had been a party
to such suit in applying the doctrine of res judicata in all suits
in respect of any internal revenue tax, and in all proceedings in
the Tax Court and on review of decisions of the Tax Court.
(d) Credit treated as payment
The credit of an overpayment of any tax in satisfaction of any
tax liability shall, for the purpose of any suit for refund of such
tax liability so satisfied, be deemed to be a payment in respect of
such tax liability at the time such credit is allowed.
(e) Stay of proceedings
If the Secretary prior to the hearing of a suit brought by a
taxpayer in a district court or the United States Court of Federal
Claims for the recovery of any income tax, estate tax, gift tax, or
tax imposed by chapter 41, 42, 43, or 44 (or any penalty relating
to such taxes) mails to the taxpayer a notice that a deficiency has
been determined in respect of the tax which is the subject matter
of taxpayer's suit, the proceedings in taxpayer's suit shall be
stayed during the period of time in which the taxpayer may file a
petition with the Tax Court for a redetermination of the asserted
deficiency, and for 60 days thereafter. If the taxpayer files a
petition with the Tax Court, the district court or the United
States Court of Federal Claims, as the case may be, shall lose
jurisdiction of taxpayer's suit to whatever extent jurisdiction is
acquired by the Tax Court of the subject matter of taxpayer's suit
for refund. If the taxpayer does not file a petition with the Tax
Court for a redetermination of the asserted deficiency, the United
States may counterclaim in the taxpayer's suit, or intervene in the
event of a suit as described in subsection (c) (relating to suits
against officers or employees of the United States), within the
period of the stay of proceedings notwithstanding that the time for
such pleading may have otherwise expired. The taxpayer shall have
the burden of proof with respect to the issues raised by such
counterclaim or intervention of the United States except as to the
issue of whether the taxpayer has been guilty of fraud with intent
to evade tax. This subsection shall not apply to a suit by a
taxpayer which, prior to the date of enactment of this title, is
commenced, instituted, or pending in a district court or the United
States Court of Federal Claims for the recovery of any income tax,
estate tax, or gift tax (or any penalty relating to such taxes).
(f) Limitation on right of action for refund
(1) General rule
A suit or proceeding referred to in subsection (a) may be
maintained only against the United States and not against any
officer or employee of the United States (or former officer or
employee) or his personal representative. Such suit or proceeding
may be maintained against the United States notwithstanding the
provisions of section 2502 of title 28 of the United States Code
(relating to aliens' privilege to sue) and notwithstanding the
provisions of section 1502 of such title 28 (relating to certain
treaty cases).
(2) Misjoinder and change of venue
If a suit or proceeding brought in a United States district
court against an officer or employee of the United States (or
former officer or employee) or his personal representative is
improperly brought solely by virtue of paragraph (1), the court
shall order, upon such terms as are just, that the pleadings be
amended to substitute the United States as a party for such
officer or employee as of the time such action commenced, upon
proper service of process on the United States. Such suit or
proceeding shall upon request by the United States be transferred
to the district or division where it should have been brought if
such action initially had been brought against the United States.
(g) Special rules for certain excise taxes imposed by chapter 42 or
43
(1) Right to bring actions
(A) In general
With respect to any taxable event, payment of the full amount
of the first tier tax shall constitute sufficient payment in
order to maintain an action under this section with respect to
the second tier tax.
(B) Definitions
For purposes of subparagraph (A), the terms "taxable event",
"first tier tax", and "second tier tax" have the respective
meanings given to such terms by section 4963.
(2) Limitation on suit for refund
No suit may be maintained under this section for the credit or
refund of any tax imposed under section 4941, 4942, 4943, 4944,
4945, 4951, 4952, 4955, 4958, 4971, or 4975 with respect to any
act (or failure to act) giving rise to liability for tax under
such sections, unless no other suit has been maintained for
credit or refund of, and no petition has been filed in the Tax
Court with respect to a deficiency in, any other tax imposed by
such sections with respect to such act (or failure to act).
(3) Final determination of issues
For purposes of this section, any suit for the credit or refund
of any tax imposed under section 4941, 4942, 4943, 4944, 4945,
4951, 4952, 4955, 4958, 4971, or 4975 with respect to any act (or
failure to act) giving rise to liability for tax under such
sections, shall constitute a suit to determine all questions with
respect to any other tax imposed with respect to such act (or
failure to act) under such sections, and failure by the parties
to such suit to bring any such question before the Court shall
constitute a bar to such question.
(h) Special rule for actions with respect to partnership items
No action may be brought for a refund attributable to partnership
items (as defined in section 6231(a)(3)) except as provided in
section 6228(b) or section 6230(c).
(i) Special rule for actions with respect to tax shelter promoter
and understatement penalties
No action or proceeding may be brought in the United States Court
of Federal Claims for any refund or credit of a penalty imposed by
section 6700 (relating to penalty for promoting abusive tax
shelters, etc.) or section 6701 (relating to penalties for aiding
and abetting understatement of tax liability).
(j) Special rule for actions with respect to estates for which an
election under section 6166 is made
(1) In general
The district courts of the United States and the United States
Court of Federal Claims shall not fail to have jurisdiction over
any action brought by the representative of an estate to which
this subsection applies to determine the correct amount of the
estate tax liability of such estate (or for any refund with
respect thereto) solely because the full amount of such liability
has not been paid by reason of an election under section 6166
with respect to such estate.
(2) Estates to which subsection applies
This subsection shall apply to any estate if, as of the date
the action is filed -
(A) no portion of the installments payable under section 6166
have been accelerated;
(B) all such installments the due date for which is on or
before the date the action is filed have been paid;
(C) there is no case pending in the Tax Court with respect to
the tax imposed by section 2001 on the estate and, if a notice
of deficiency under section 6212 with respect to such tax has
been issued, the time for filing a petition with the Tax Court
with respect to such notice has expired; and
(D) no proceeding for declaratory judgment under section 7479
is pending.
(3) Prohibition on collection of disallowed liability
If the court redetermines under paragraph (1) the estate tax
liability of an estate, no part of such liability which is
disallowed by a decision of such court which has become final may
be collected by the Secretary, and amounts paid in excess of the
installments determined by the court as currently due and payable
shall be refunded.
(k) Cross references
(1) For provisions relating generally to claims for refund or
credit, see chapter 65 (relating to abatements, credit, and
refund) and chapter 66 (relating to limitations).
(2) For duty of United States attorneys to defend suits, see
section 507 of Title 28 of the United States Code.
(3) For jurisdiction of United States district courts, see
section 1346 of Title 28 of the United States Code.
(4) For payment by the Treasury of judgments against internal
revenue officers or employees, upon certificate of probable
cause, see section 2006 of Title 28 of the United States Code.

The date of enactment of this title, referred to in subsec. (e),
is Aug. 16, 1954.

AMENDMENTS

1998 - Subsecs. (j), (k). Pub. L. 105-206 added subsec. (j) and
redesignated former subsec. (j) as (k).
1996 - Subsec. (g)(2), (3). Pub. L. 104-168 inserted "4958,"
after "4955,".
1992 - Subsecs. (e), (i). Pub. L. 102-572 substituted "United
States Court of Federal Claims" for "United States Claims Court"
wherever appearing.
1988 - Subsec. (e). Pub. L. 100-418 substituted "or 44" for "44,
or 45".
1987 - Subsec. (g)(2), (3). Pub. L. 100-203 inserted "4955,"
after "4952,".
1986 - Subsec. (g)(1)(B). Pub. L. 99-514 substituted "section
4963" for "section 4962".
1984 - Subsec. (h). Pub. L. 98-369, Sec. 714(p)(2)(H),
substituted "section 6231(a)(3)" for "section 6131(a)(3)".
Subsecs. (i), (j). Pub. L. 98-369, Sec. 714(g)(1), added subsec.
(i) and redesignated former subsec. (i) as (j).
1982 - Subsec. (e). Pub. L. 97-164 substituted "United States
Claims Court" for "Court of Claims" wherever appearing.
Subsecs. (h), (i). Pub. L. 97-248 added subsec. (h) and
redesignated former subsec. (h) as (i).
1980 - Subsec. (e). Pub. L. 96-223 inserted reference to chapter
45.
Subsec. (g). Pub. L. 96-596 substituted in par. (1) provision
authorizing, with respect to any taxable event, payment of the full
amount of the first tier tax as constituting sufficient payment in
order to maintain an action under this section with respect to the
second tier tax and defining the terms "taxable event", "first tier
tax", and "second tier tax" as having the respective meanings given
to such terms by section 4962 of this title for provision
authorizing, with respect to any act or failure to act giving rise
to liability under sections 4941, 4942, 4943, 4944, 4945, 4951,
4952, 4971, or 4975 of this title, payment of the full amount of
tax imposed under specified subsections of those sections as
constituting sufficient payment in order to maintain an action
under this section with respect to such act or failure to act.
Pub. L. 96-222 substituted in pars. (1) to (3) "4944, 4945, 4951,
4952" for "4944, 4945" and in par. (1) "section 4945(a) (relating
to initial taxes on taxable expenditures), section 4951(a)
(relating to initial taxes on self dealing), 4952(a) (relating to
initial taxes on taxable expenditures)" for "section 4945(a)
(relating to initial taxes on taxable expenditures)" and "section
4945(b) (relating to additional taxes on taxable expenditures),
section 4951(b) (relating to additional taxes on self-dealing),
4952(b) (relating to additional taxes on taxable expenditures)" for
"section 4945(b) (relating to additional taxes on taxable
expenditures)".
1976 - Subsec. (a). Pub. L. 94-455, Sec. 1906(b)(13)(A), struck
out "or his delegate" after "Secretary".
Subsec. (c). Pub. L. 94-455, Sec. 1906(a)(44), struck out
"instituted after June 15, 1942," after "res judicata in all suits"
and "where the petition to the Tax Court was filed after such date"
after "decisions of the Tax Court".
Subsec. (e). Pub. L. 94-455, Secs. 1307(d)(2)(F)(viii),
1605(b)(11), 1906(b)(13)(A), struck out "or his delegate" after
"Secretary" and substituted "chapter 41, 42," for "chapter 42" and
"43, or 44" for "or 43".
1974 - Subsec. (e). Pub. L. 93-406, Sec. 1016(a)(26)(A),
substituted "chapter 42 or 43" for "chapter 42".
Subsec. (g). Pub. L. 93-406, Sec. 1016(a)(26)(B)-(F), substituted
"chapter 42 or 43" for "chapter 42" in heading, substituted "4945,
4971, or 4975" for "or 4945", "section 4945(a) (relating to initial
taxes on taxable expenditures), 4971(a) (relating to initial tax on
failure to meet minimum funding standard), 4975(a) (relating to
initial tax on prohibited transactions)" for "section 4945(a)
(relating to initial taxes on taxable expenditures)", and "section
4945(b) (relating to additional taxes on taxable expenditures),
section 4971(b) (relating to additional tax on failure to meet
minimum funding standard), or section 4975(b) (relating to
additional tax on prohibited transactions)" for "or section 4945(b)
(relating to additional taxes on taxable expenditures)" in par.
(1), and substituted "4945, 4971, or 4975" for "or 4945" in pars.
(2) and (3).
1971 - Subsec. (f)(1). Pub. L. 92-178 authorized maintenance of
suit or proceeding against the United States notwithstanding
provisions of section 1502 of Title 28 (relating to certain treaty
cases).
1969 - Subsec. (e). Pub. L. 91-172, Sec. 101(j)(56), inserted
reference to chapter 42 taxes.
Subsecs. (g), (h). Pub. L. 91-172, Sec. 101(i), added subsec. (g)
and redesignated former subsec. (g) as (h).
1966 - Subsecs. (f), (g). Pub. L. 89-713 added subsec. (f) and
redesignated former subsec. (f) as (g).
1958 - Subsec. (f)(2). Pub. L. 85-866 struck out "district"
before "attorneys".
EFFECTIVE DATE OF 1998 AMENDMENT
Pub. L. 105-206, title III, Sec. 3104(c), July 22, 1998, 112
Stat. 732, provided that: "The amendments made by this section
[amending this section and section 7479 of this title] shall apply
to any claim for refund filed after the date of the enactment of
this Act [July 22, 1998]."
EFFECTIVE DATE OF 1996 AMENDMENT
Amendment by Pub. L. 104-168 applicable to excess benefit
transactions occurring on or after Sept. 14, 1995 and not
applicable to any benefit arising from a transaction pursuant to
any written contract which was binding on Sept. 13, 1995, and at
all times thereafter before such transaction occurred, see section
1311(d)(1), (2) of Pub. L. 104-168, set out as a note under section
4955 of this title.
EFFECTIVE DATE OF 1992 AMENDMENT
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of
Title 28, Judiciary and Judicial Procedure.
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100-418 applicable to crude oil removed from
the premises on or after Aug. 23, 1988, see section 1941(c) of Pub.
L. 100-418, set out as a note under section 164 of this title.
EFFECTIVE DATE OF 1987 AMENDMENT
Amendment by Pub. L. 100-203 applicable to taxable years
beginning after Dec. 22, 1987, see section 10712(d) of Pub. L. 100-
203, set out as an Effective Date note under section 4955 of this
title.
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by section 714(g)(1) of Pub. L. 98-369 applicable to
any claim for refund or credit filed after July 18, 1984, see
section 714(g)(4) of Pub. L. 98-369, set out as an Effective Date
note under section 1509 of Title 28, Judiciary and Judicial
Procedure.
Amendment by section 714(p)(2)(H) of Pub. L. 98-369 effective as
if included in the provision of the Tax Equity and Fiscal
Responsibility Act of 1982, Pub. L. 97-248, to which such amendment
relates, see section 715 of Pub. L. 98-369, set out as a note under
section 31 of this title.
EFFECTIVE DATE OF 1982 AMENDMENT
Amendment by Pub. L. 97-248 applicable to partnership taxable
years beginning after Sept. 3, 1982, with provision for the
applicability of the amendment to any partnership taxable year
ending after Sept. 3, 1982, if the partnership, each partner, and
each indirect partner requests such application and the Secretary
of the Treasury or his delegate consents to such application, see
section 407(a)(1), (3) of Pub. L. 97-248, set out as an Effective
Date note under section 6221 of this title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section
402 of Pub. L. 97-164, set out as a note under section 171 of Title
28, Judiciary and Judicial Procedure.
EFFECTIVE DATE OF 1980 AMENDMENTS
For effective date of amendment by Pub. L. 96-596 with respect to
any first tier tax and to any second tier tax, see section 2(d) of
Pub. L. 96-596, set out as an Effective Date note under section
4961 of this title.
Amendment by Pub. L. 96-223 applicable to periods after Feb. 29,
1980, see section 101(i) of Pub. L. 96-223, set out as a note under
section 6161 of this title.
Amendment by Pub. L. 96-222 effective as if included in the
provisions of the Black Lung Benefits Revenue Act of 1977, Pub. L.
95-227, see section 108(b)(4) of Pub. L. 96-222, set out as a note
under section 192 of this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by section 1307(d)(2)(F)(viii) of Pub. L. 94-455
effective on and after Oct. 4, 1976, see section 1307(e)(6) of Pub.
L. 94-455, set out as a note under section 501 of this title.
For effective date of amendment by section 1605(b)(11) of Pub. L.
94-455, see section 1608(d) of Pub. L. 94-455, set out as a note
under section 856 of this title.
Amendment by section 1906(a)(44), (b)(13)(A) of Pub. L. 94-455
effective on first day of first month which begins more than 90
days after Oct. 4, 1976, see section 1906(d)(1) of Pub. L. 94-455,
set out as a note under section 6013 of this title.
EFFECTIVE DATE OF 1974 AMENDMENT
Amendment by Pub. L. 93-406 applicable, except as otherwise
provided in section 1017(c) through (i) of Pub. L. 93-406, for plan
years beginning after Sept. 2, 1974, and in the case of plans in
existence on Jan. 1, 1974, amendment by Pub. L. 93-406 applicable
for plan years beginning after Dec. 31, 1975, see section 1017 of
Pub. L. 93-406, set out as an Effective Date; Transitional Rules
note under section 410 of this title.
EFFECTIVE DATE OF 1971 AMENDMENT
Section 309(b) of Pub. L. 92-178 provided that: "The amendment
made by subsection (a) [amending this section] shall apply to suits
or proceedings which are instituted after January 30, 1967."
EFFECTIVE DATE OF 1969 AMENDMENT
Amendment by Pub. L. 91-172 effective Jan. 1, 1970, see section
101(k)(1) of Pub. L. 91-172, set out as an Effective Date note
under section 4940 of this title.
EFFECTIVE DATE OF 1966 AMENDMENT
Section 3(d) of Pub. L. 89-713 provided that: "The amendments
made by subsections (a) and (b) [amending this section and section
2502 of Title 28, Judiciary and Judicial Procedure] shall apply to
suits brought against officers, employees, or personal
representatives referred to therein which are instituted 90 days or
more after the date of the enactment of this Act [Nov. 2, 1966].
The amendment made by subsection (c) [amending section 7482 of this
title] shall apply to all decisions of the Tax Court entered after
the date of enactment of this Act."
EFFECTIVE DATE OF 1958 AMENDMENT
Amendment by Pub. L. 85-866 as effective Aug. 17, 1954, see
section 1(c)(2) of Pub. L. 85-866, set out as a note under section
165 of this title.
PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989
For provisions directing that if any amendments made by subtitle
A or subtitle C of title XI [Secs. 1101-1147 and 1171-1177] or
title XVIII [Secs. 1800-1899A] of Pub. L. 99-514 require an
amendment to any plan, such plan amendment shall not be required to
be made before the first plan year beginning on or after Jan. 1,
1989, see section 1140 of Pub. L. 99-514, as amended, set out as a
note under section 401 of this title.